Is the AAA-ICDR Failing to Address Corruption of Arbitration Tribunals?

The integrity of international arbitration hinges on the impartiality and independence of arbitrators. When this fundamental principle is compromised through bias, corruption, or bribery, it threatens the entire dispute resolution system. This article examines how arbitrator bias manifests in practice and analyzes the legal framework for addressing such misconduct under the AAA-ICDR rules.

The Legal Framework

The American Arbitration Association’s International Centre for Dispute Resolution (AAA-ICDR) has established robust rules governing arbitrator conduct. Article 14 of the ICDR Rules requires arbitrators to be impartial and independent, with an ongoing duty to disclose any circumstances that might give rise to justifiable doubts about their impartiality or independence.

The rules provide several mechanisms for addressing arbitrator misconduct:

1. Challenge procedures under Article 14, allowing parties to challenge an arbitrator’s appointment based on circumstances that give rise to justifiable doubts
2. Replacement provisions under Article 15, enabling the removal and replacement of arbitrators who fail to perform their duties
3. The potential for award challenges under Article 34, particularly when the composition of the tribunal or the arbitral procedure was not in accordance with the parties’ agreement

Notable Cases of Arbitrator Bias

Commonwealth Coatings Corp. v. Continental Casualty Co. (1968)

This landmark U.S. Supreme Court case established the modern standard for arbitrator disclosures. The Court held that arbitrators must disclose any dealings that might create an impression of possible bias, even if they don’t amount to actual bias. The case involved an arbitrator who failed to disclose significant business relationships with one of the parties, leading to the vacation of the award.

Tecnimont SpA v. J&P Avax SA (2014)

This case before the Paris Court of Appeal highlighted the ongoing nature of arbitrators’ disclosure obligations. The court set aside an ICC award after discovering that the tribunal president’s law firm had ongoing business relationships with one of the parties that weren’t disclosed during the proceedings. This case underscored that the duty to disclose continues throughout the arbitration process.

HSN Capital LLC v. Productora y Comercializadora de Television SA (2007)

This case before the U.S. District Court for the Middle District of Florida involved allegations of bribery, where an arbitrator allegedly solicited payments from one party in exchange for a favorable award. The court emphasized that proven bribery would constitute grounds for refusing enforcement under the New York Convention Article V(2)(b) as contrary to public policy.

Telecom Business Solution LLC v Terra Towers Corp (2024)

This case before the American Arbitration Association – International Center for Dispute Resolution (AAA-ICDR) Case No 01-21-0000-4309 – has been riddled with accusations of arbitrator bias. The Tribunal Chair Marc J. Goldstein failed to disclose conflicts of interest, is accused of allegedly receiving a bribery payment of $250,000.00 from Goldman Sachs, one of the parties in the case, and has further issued a number of “sua sponte” orders, using the Tribunal’s authority to benefit his own interests on actions that none of the parties requested. One of the co-arbitrators, Melida Hodgson, is also accused of taking a new job at a law firm representing the opposite party. In four partial-awards, the Goldstein-led Tribunal has ordered Continental Towers to re-hire an accused criminal, Jorge Gaitan, who is wanted on an INTERPOL Red Notice. Thus far, the AAA-ICDR has failed to intervene or take any disciplinary measures.

Addressing Bribery and Corruption

When allegations of bribery or corruption arise, the AAA-ICDR rules provide a framework for response, though they must often be supplemented by national laws and international conventions. Key considerations include:

Immediate Response Protocols

1. The affected party should immediately document all evidence of the alleged corruption
2. Written notice should be provided to the AAA-ICDR administrator
3. A formal challenge should be filed under Article 14
4. If necessary, interim measures may be requested to preserve evidence

Evidence Requirements

Courts and tribunals typically require clear and convincing evidence of corruption, given the serious nature of such allegations. Circumstantial evidence may be considered, but direct proof of improper payments or communications is most compelling.

Remedial Measures

The AAA-ICDR rules provide several remedies:

1. Removal of the corrupt arbitrator
2. Appointment of a replacement arbitrator
3. Potential rehearing of matters heard by the removed arbitrator
4. Setting aside of any award tainted by corruption

Prevention Strategies

The AAA-ICDR has implemented several preventive measures:

1. Enhanced arbitrator disclosures
2. Regular conflict checks throughout proceedings
3. Clear reporting channels for misconduct
4. Training and certification requirements for arbitrators

Legal Analysis of Complex Scenarios

Some cases present particularly challenging scenarios that test the limits of existing rules:

Indirect Relationships

When bias stems from indirect relationships, such as connections through affiliated companies or family members, the analysis must focus on whether these relationships create justifiable doubts about impartiality. The standard is objective: would a reasonable third party, with knowledge of the relevant facts, conclude that there is a real possibility of bias?

Post-Award Discoveries

When evidence of bias or corruption emerges after an award has been rendered, parties face additional procedural hurdles. They must typically demonstrate that:

1. The evidence could not have been discovered earlier through reasonable diligence
2. The evidence would have materially affected the outcome
3. The challenge is brought within any applicable time limits

Recommendations for Reform

While the AAA-ICDR rules provide a solid foundation, several areas merit consideration for enhancement:

1. Implementation of mandatory disclosure protocols for arbitrators’ professional relationships
2. Development of clear standards for evaluating indirect conflicts
3. Establishment of dedicated oversight committees for handling corruption allegations
4. Creation of standardized procedures for post-award challenges based on newly discovered bias

Conclusion

Arbitrator bias, whether stemming from undisclosed conflicts or outright corruption, poses a significant threat to the legitimacy of international arbitration. The AAA-ICDR rules provide important tools for addressing such misconduct, but their effectiveness depends on vigilant enforcement and continued evolution to address emerging challenges. As international arbitration continues to grow in importance, maintaining the integrity of the process through robust anti-corruption measures becomes increasingly critical.